Selective Prosecution from CIA’s US Attorney

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In its response to John Kiriakou’s claim he is being selectively prosecuted, the government cites this passage from US v. Armstrong.

A selective prosecution claim asks a court to exercise judicial power over a special province of the Executive. The Attorney General and United States Attorneys retain broad discretion to enforce the Nation’s criminal laws . . . . As a result, [t]he presumption of regularity supports their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. In the ordinary case, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. [my emphasis]

It then describes the standard for presumption of regularity by citing David Passaro’s unsuccessful appeal.

Kiriakou seeks to overturn the presumption of regularity by asserting that the decision to charge him must have arisen from some illegitimate prosecutorial motive, rather than the investigation having followed the facts where they led. However, the defendant fails to offer clear evidence to support his claim, and falls far short of satisfying the high burden required to overcome the presumption of regularity. See United States v. Passero, 577 F.3d 207, 219 (4th Cir. 2009) (“[u]nless a defendant provides ‘clear evidence’ to overcome the presumption that a government prosecutor has acted lawfully and without discrimination-a ‘particularly demanding’ standard-he cannot demonstrate a constitutional violation for selective prosecution.” (citation omitted)). [original spelling error for “Passaro” highlighted]

The entire filing is signed this way:

Compare that signature with this one, from before Kiriakou was indicted.

Or this signature, from the indictment itself.

Monday’s response to Kiriakou’s selective prosecution motion is the first submitted after Patrick Fitzgerald’s last day on Friday. If I’m not mistaken, it is the first filing submitted after the guy selected for his independence from the CIA’s witch hunt on torture departed government. It is, AFAIK, the first public hint at what the new investigative reporting structure and team looks like (which appears to have completely changed, even beyond Fitzgerald’s departure).

And the filing shows that, rather have the prosecution led by a US Attorney assigned as a Special Attorney reporting directly to the Attorney General, the prosecution now includes Neil MacBride, US Attorney for Eastern District of VA. And while the designation of AUSAs Schneider, Lan, and Fayhee as Special Attorneys suggests some kind of special reporting structure (Lan, at least, is in SDNY, not EDVA), the filing shows that the CIA’s US Attorney, the US Attorney’s office for EDVA, now has a role in the prosecution.

Which brings me to the problem with the government’s citations on selective prosecution.

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John Roberts Fails to Dictate Another Presidential Outcome, John Yoo Cries

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In this post, I suggested the reason Republicans are so angry that John Roberts apparently flipped his vote (note, Barton Gellman reminded today that Ramesh Ponnuru said at Princeton reunion this year that Roberts had flipped before June 1) because they expected the conservative Justices to influence this year’s election.

Funny. In his rant declaring John Roberts the next David Souter, John Yoo has this to say:

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius’s limits on the Commerce Clause and expand the taxing power even further. After the Hughes court switch, FDR replaced retiring Justices with a pro-New Deal majority, and the court upheld any and all expansions of federal power over the economy and society. The court did not overturn a piece of legislation under the Commerce Clause for 60 years.

Mind you, he doesn’t rule out a Republican (he doesn’t name Mitt directly) getting elected. But he does see this in terms of the election, it seems.

But that’s not the most interesting passage in Yoo’s rant. This was:

Justice Roberts too may have sacrificed the Constitution’s last remaining limits on federal power for very little—a little peace and quiet from attacks during a presidential election year.

The … last … remaining … limits … on … Federal … power.

Yep. John Yoo said that.

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Black Holes and Mock Burial

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The other day, I posted on black holes in Bagram and Somalia. This important story, describes the plight of Tanzanian fisherman Suleiman Abdallah, who was kidnapped and sold for bounty in Mogadishu then rendered to three different American prisons, ultimately to Bagram, before he was freed five years later.

In addition to the portraying yet another innocent disappeared into our prison system, the story provides a few important details.

In fact, Suleiman was thousands of kilometers from his familiar Indian Ocean reefs, in an underground prison in central Afghanistan.

“It was pitch black, with constant noise and not enough food,” he recalled. His American interrogators would pour freezing cold water on him and beat him, saying, “We know you are a sea man, but here we have more water than out there in the sea. It never stops raining here.” Suleiman also describes being hung from the ceiling in the “strappado position,” slung in chains so that his toes just touched the floor. He also says American interrogators would take the ablution jug (used by Muslims for ritual cleansing before prayer), and stick its long spout up his rectum.

[snip]

The litany of abuses described by Suleiman included severe beatings, prolonged solitary confinement, forced nakedness and humiliation, sexual assault, being locked naked in a coffin and forced to lie on a wet mat, naked and handcuffed, and then rolled up like a corpse. It was extremely tough. There were times when both of us clinicians, and the patient, broke down in tears.” [my emphasis]

While Clare Gutteridge doesn’t say it, the underground prison in Afghanistan sounds like the Salt Pit (Cage Prisoners says it was a different prison, but that he was then transferred to the Salt Pit). He was transferred to the relatively better Bagram in mid-2003.

In any case, that means the prisons in Afghanistan were using dousing after it may have contributed to Gul Rahman’s death the previous year, and after the CIA IG investigation into torture started.

Then there’s the mock burial–the only treatment John Yoo ever deemed torture. While Abdallah’s torturers might call the coffin “small box confinement,” between that and the funeral shroud, the intent of the treatment seems fairly clear.

And remember: top Bush officials had reason to know this treatment would elicit false confessions. It sounds like CIA and FBI interrogators learned fairly early on Abdallah was not who they had thought he was (they originally believed he had a role in the 1998 Embassy bombings).

Were we using the methods that even John Yoo found to be illegal to invent some justification for kidnapping Abdallah?

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Michael Hayden’s Stone Walling

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As a number of outlets have reported, in his book, Daniel Klaidman describes Michael Hayden’s effort to convince Obama to approve 6 torture techniques by demonstrating some of them on David Shedd.

But [Hayden’s] most unusual prop was David Shedd, the deputy DNI for policy, plans, and requirements. Not long into his presentation, Hayden called Shedd over. Suddenly, unexpectedly, Hayden slapped Shedd’s face. Then he grabbed him by the lapels and started to shake him. He’d wanted to throw him up against the wall during this demonstration, but there were chairs in the way. Instead he explained to Obama and his aides about the interrogation technique known as “walling,” in which detainees were thrown against a flexible artificial wall that made a loud noise on impact but caused little physical pain.

These were three of the remaining six techniques that made up the harsh interrogation methods the CIA had relied on since shortly after 9/11. (The most controversial practice, the simulated-drowning technique known as waterboarding, had not been used since 2003.) The others were the playing of loud music, keeping the lights on in the cell twenty-four hours a day, and sleep deprivation.

According to this description, on December 9, 2008, Michael Hayden told Obama the 6 permissible torture techniques at that time were:

  • facial slap
  • attention grasp
  • walling
  • use of music
  • use of light
  • sleep deprivation

Really? That’s odd.

If I’m not mistaken, the last formal Bush OLC memo embracing torture was the July 20, 2007 memo authorizing the following six techniques:

  • facial hold
  • attention grasp
  • abdominal slap
  • facial slap
  • dietary manipulation
  • sleep deprivation

There were three more letters written after this memo approving (and in one case, extending) treatment with particular detainees: August 23, 2007, November 6, 2007, and November 7, 2007. But they appear to deal with sleep deprivation, not a new approval of walling. And yet in December 2008, Hayden said CIA was using walling.

It may be that the July 2007 memo was meaningless. After all, it relied on Bradbury’s past memos (see footnote 2), including the May 10, 2005 one where Bradbury found walling to be legal. Moreover it was issued in conjunction with (though did not mention) Bush’s Executive Order 13440, which asserted,

(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:

[snip]

(iii) the interrogation practices are determined by the Director of the Central Intelligence Agency, based upon professional advice, to be safe for use with each detainee with whom they are used;

In other words, EO 13440 lets the CIA Director decide what torture techniques are legal. And so long as you’re still clinging to the 2005 torture memos, Michael Hayden can decide that even waterboarding is legal. And Michael Hayden told the incoming Administration that walling was legal.

Notably, in Hayden’s second attempt to convince the Obama Administration to use torture–roughly January 13, 2009–he appears to have suggested that Dianne Feinstein was mischaracterizing walling.

Hayden’s advocacy of the interrogation program was just as fierce: it worked, and it was vital to America’s national security, he said. Democrats had wildly mischaracterized the techniques, including California senator Dianne Feinstein, who, he said, made walling “sound like some kind of a WWF steel-cage death match,” when in fact suspects wore neck braces to avoid getting whiplash.

There’s some further story, I suspect, about why Hayden was pitching a technique that even Steven Bradbury hadn’t included in approved techniques in July 2007.

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SCOTUS Reviews the “Military Age Male” Standard on Thursday

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One of the most consistent statements of outrage I’ve seen from people just coming to the horrors of the drone program is the military aged male criterion: the Administration’s assumption that all military age males killed in a drone strike must be combatants.

Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

Justin Elliott even got the Administration to reiterate the claim, albeit anonymously.

I gave the White House a chance to respond, and it declined to comment on the record. But speaking on condition of anonymity, an administration official acknowledged that the administration does not always know the names or identities of everyone in a location marked for a drone strike.

“As a general matter, it [the Times report] is not wrong that if a group of fighting age males are in a home where we know they are constructing explosives or plotting an attack, it’s assumed that all of them are in on that effort,” the official said. “We’re talking about some of the most remote places in the world, and some of the most paranoid organizations on the planet. If you’re there with them, they know you, they trust you, there’s a reason [you’re] there.” [brackets original]

What no one seems to get, however, is that between them, the Bush and Obama Administrations have been using that standard to detain people for over a decade. Indeed, there are probably over 30 men (I suspect the number is closer to 50) still at Gitmo being held on that standard, most of them for over a decade.

More importantly, SCOTUS will decide whether to uphold that standard on Thursday (or whenever they get around to accepting or denying cert on the 7 Gitmo cases they’ve been agonizing over for weeks).

The case is question is Uthman Abdul Rahim Mohammed Uthman’s habeas petition. Here’s how his cert petition describes the issues presented by his case.

Whether the Authorization of Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (‘‘AUMF”), authorizes the President to detain, indefinitely and possibly for the rest of his life, an individual who was not shown to have fought for al Qaeda, trained to fight for al Qaeda, or received or executed orders from al Qaeda, and was not claimed to have provided material support to al Qaeda.

The government has always yoked its detention authority closely to its targeted killing authority (see, for example, the reported justification for the Awlaki killing). And here you can replace “detain, indefinitely and possibly for the rest of his life” with “kill with a drone strike” and you’ve got precisely the authority that Obama (and Bush before him) claims to kill all men in the vicinity of suspected al Qaeda figures, even absent any claim they were al Qaeda fighters.

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Either Torture Is Ongoing Or the Administration Is Hiding Something Else

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I don’t mean to be ungrateful that the NYT wrote an editorial about the 2nd Circuit’s decision to help the CIA hide its torture documents from FOIA. I’m not! I’m glad they’re noting how the courts are collaborating in hiding our government’s crimes from us.

But I’m going to be a bit pedantic about it.

As almost every outlet has when covering the 2nd Circuit decision, the editorial focuses primarily on the picture of Abu Zubaydah after he was tortured. That makes sense. A picture is so concrete, so easy to understand.

It does, however, also mention the court’s ruling hiding what the government has all-but confirmed is mention of the Gloves Come Off Memorandum of Notification. But it interprets those references to “concern the origins” of the torture program (I’m also grateful that NYT used the word “torture,” btw).

The court also said the C.I.A. was justified in withholding two passages in Justice Department memos that appear to concern the origins of the Bush torture program.

Now, I don’t blame the NYT for not saying this is the Gloves Come Off MON–while both Judge Alvin Hellerstein and DOJ have all-but confirmed that, that’s not adequate proof for the NYT. But these passages either represent more than “the origins of the torture program,” or we’re still in the torture business.

That’s because in his opinion, Judge Richard Wesley makes it clear that the references are to an ongoing activity.

We give substantial weight to the Government’s declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity.

In the middle of an opinion discussing torture, Wesley said some activity relating to torture  is still active.

Now, I’m not saying I think torture (well, waterboarding, anyway) is still ongoing. As I have noted, all the evidence suggests the government is hiding this very short reference to the Gloves Come Off MON because releasing it might amount to admission of all the other covert programs either explicitly or implicitly included in it–including the drone program, but also including things like buying the services of the Egyptian intelligence services.

Furthermore, we reject the district court’s suggestion that certain portions of the redacted information are so general in relation to previously disclosed activities of the CIA that their disclosure would not compromise national security. It is true that the Government has disclosed significant aspects of the CIA’s discontinued detention and interrogation program, but its declarations explain in great detail how the withheld information pertains to intelligence activities unrelated to the discontinued program.

But until the Administration explains all this, what we’ve got is a Circuit Court judge saying that he can’t release a half sentence phrase–one appearing in the title of Torture Guidelines–because that half sentence phrase relates to an activity that is still ongoing.

Which is it folks? Torture? Or simply a whole bunch of equally terrible things?

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The First Torture Cover-Up Was Covered Up By The First Torture Cover-Up Lawyer

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Document Exploitation blog has read Jose Rodriguez’ book so I don’t have to!

Seriously, I will eventually get around to reading Rodriguez’ book, when I can get it cheaper than toilet paper. But until then, I’m glad a document wonk has done the work.

One of the more interesting observations from DocEx pertains to Judge Hellerstein’s apparent misreading of CIA’s promises to fix their contemptuous document responses. Click through for that. (Though now that I understand that Hellerstein was unsuccessfully trying to expose that the President had authorized all this torture, perhaps he believed he had achieved a just result.)

But the real “ah ha” for me was this–showing that the CIA lawyer that reviewed the already-damaged torture tapes and found evidence of that damage not noteworthy…

This report appears to show McPherson admitting that he saw some of the tapes were partially blank, or had snow on them.

[Redacted] for many of the tapes one 1/2 or 3/4 of the tape “there was nothing.” [Redacted] on some tapes it was apparent that the VCR had been turned off and then turned back on right away. [Redacted] on other tapes the video quality was poor and on others the tape had been reused (taped over) or not recorded at all. [Redacted] The label on some tapes read “interrogation session,” but when viewed there was just snow. [Redaction] did not make note of this in [redaction] report. [Redaction] estimated that “half a dozen” videotapes had been taped over or were “snowy.”

Though he claims not to have noticed that two of the tapes were broken (though perhaps they were broken later). When asked why he had not reported the blank tapes in his report, McPherson said he didn’t find that “noteworthy.”

… Was also the lawyer who provided the original, contemptuous FOIA response.

Rodriguez’s account also sheds new light on a crucial lynchpin in the ACLU FOIA case by identifing the CIA attorney from the Office of General Counsel (OGC) who viewed the videotapes in Nov. 2002 as “one of the assistant general counsels” whom Rodriguez calls “a very senior Agency officer.”  The attorney was later interviewed by the CIA Office of Inspector General (OIG) about that review. Rodriguez’s small, but important details corroborate earlier reporting by the AP and WashPo that the OGC attorney was John L. McPherson, who based on unrelated court filings, was an Assistant General Counsel as of 2001 and later became an Associate General Counsel.

Why is this significant? Hellerstein found the tapes subject to FOIA because they were “identified and produced to” the CIA’s OIG “as part of its investigation into allegations” of unauthorized interrogations and human rights violations. Yet Hellerstein stopped short of finding the CIA in contempt in part because “the individuals responsible for processing and responding to plaintiffs’ FOIA requests may not have been aware of the videotapes’ existence before they were destroyed.”

Remarkably, however, the crucial FOIA response from the CIA regarding the records of the OIG in April 2005 (ergo, 7 months prior to the destruction of the tapes) was written by none other than John L. McPherson. Read more →

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2nd Circuit: President Can Declare Proof that President Authorized Torture Secret

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As I showed in a series of posts several weeks ago, the Obama Administration appealed Judge Alvin Hellerstein’s order to release a reference to–or at least a summary of it–the President’s September 17, 2001 “Gloves Come Off” Memorandum of Notification the government used to authorize the torture program and a whole slew of other things. (post 1, post 2, post 3, post 4, post 5, post 6, post 7, post 8) The 2nd Circuit just sided with the government, finding that the MON constituted an intelligence activity that could be classified under EO 12,958.

The Government contends that the information redacted from the OLC memoranda may be withheld from disclosure under either FOIA Exemption 1 or 3. In our view, Exemption 1 resolves the matter easily.4 Exemption 1 permits the Government to withhold information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” if that information has been “properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The Government contends that the redacted information was properly classified under Executive Order No. 12,958, as amended, which authorized the classification of information concerning “intelligence activities (including special activities), intelligence sources or methods, or cryptology.”

[snip]

Based on our ex parte and in camera review of the unredacted OLC memoranda and the Government’s classified declarations, we agree with the Government that the redacted information was properly classified because it pertains to an intelligence activity.

Of particular note, the Circuit held that letting Americans know who and how the torture program was authorized would reveal the existence and scope of a still-ongoing program.

We give substantial weight to the Government’s declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity.

Though it did suggest that the parts of the program put at jeopardy would be the other activities authorized by the MON–things like targeted killings and use of SWIFT and the “purchasing” of some Middle East intelligence services.

It is true that the Government has disclosed significant aspects of the CIA’s discontinued detention and interrogation program, but its declarations explain in great detail how the withheld information pertains to intelligence activities unrelated to the discontinued program.

Note, though: this passage is as close as the opinion comes to addressing my point–that the government already acknowledged the existence of the MON in its Vaughn Index in this case (not to mention via John Rizzo’s blabbing about it). Which is to say the court didn’t acknowledge it at all.

The CIA has already revealed the existence of this MON. The only thing that keeping it secret does is shield President Bush for all the torture committed in his name.

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“Remember, an FBI agent [like Ali Soufan] always keeps his notes.” Why Won’t Obama Admin Release Them?

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As Ali Soufan has been making the rounds rebutting Jose Rodriguez’ self-serving lies, he has said something, repeatedly, that hasn’t gotten a lot of attention.

Soufan has notes that prove Rodriguez is lying.

He actually first mentioned them publicly (AFAIK) in his book, Black Banners.

In early 2008, in a conference room that is referred to as a sensitive compartmented information facility (SCIF), I gave a classified briefing on Abu Zubaydah to staffers of the Senate Select Committee on Intelligence. The staffers present were shocked. What I told them contradicted everything they had been told by Bush administration and CIA officials.

When the discussion turned to whether I could prove everything I was saying, I told them, “Remember, an FBI agent always keep his notes.” Locked in a secure safe in the FBI New York office are my hand-written notes of everything that happened with Abu Zubaydah [redacted] (434-435; my emphasis)

He mentions them again later in the book, almost begging someone to go get them.

It was apparent from the [torture] memos that the introduction of EITs was based on lies. The proof resides in my notes–locked, as noted earlier, in FBI vaults. (526)

Soufan repeated this emphasis on his notes in a piece explaining why Jose Rodriguez’ lies might help Abd al Rahim al-Nashiri in his military commission.

Nonetheless, the government has my investigative notes, as well as daily reports, and the inspector general also found instances where Rodriguez’s team went far beyond what they had approval for and the legal guidelines set forth by the George W. Bush administration, including holding a drill to Nashiri’s head. [my emphasis]

And in the Q&A with Amy Davidson, Soufan again mentions that documentary proof that Rodriguez is lying.

The claim about waterboarding leading to unmasking of K.S.M. as the mastermind of the September 11, 2001, attacks is similarly false. We got that information in April, 2002, before the contractors hired by the C.I.A. Counterterrorism Center even arrived at the site. One by one, the successes claimed by E.I.T. proponents have been shown to be false.

I went before the Senate Judiciary Committee and under oath recounted what happened. And, as I note in “The Black Banners,” I sent daily reports from the secret interrogation location, to Washington, recording what happened, which the U.S. Government has in its possession.

[snip]

The tapes also contained our interrogations, done with traditional techniques. The tapes would have shown under which circumstances Abu Zubaydah coöperated and when he stopped coöperating. But while the tapes were destroyed, our daily reports from the location are luckily safe and still in the government’s possession. [my empahsis]

Notes, notes, notes and daily reports, daily reports, daily reports.

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The Brits Move Forward with Secret Court Plan–Because, We Claim, They Can’t Keep Secrets

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There’s one more tangential detail to the UndieBomb plot that deserves mention.

The involvement of a Saudi-handled infiltrator in the plot was revealed by May 8. The Brits knew then that it was not just the Saudis and CIA whose operation had been exposed, but MI6 and MI5, who had been involved in recruiting the guy.

The spy who helped Western intelligence agencies thwart a plot to bomb a U.S.-bound airliner was a British national of Middle Eastern origin, sources tell NBC News.

The sources, speaking on condition of anonymity, also say that British intelligence was “heavily involved” in recruiting the spy, who has not yet been identified publicly, and penetrating the plot by al-Qaida in the Arabian Peninsula to detonate a new, more sophisticated underwear bomb aboard a U.S. jetliner.

Mind you, we didn’t learn that until May 11. But the British government? They already knew it.

Which means they knew it before the Queen gave new emphasis to the plan to expand the use of secret courts in counterterrorism matters.

My government will introduce legislation to strengthen oversight of the security and intelligence agencies. This will also allow courts, through the limited use of closed proceedings, to hear a greater range of evidence in national security cases.

Remember, British Justice Secretary Ken Clarke is ostensibly doing this primarily because the fact that the British told us Binyam Mohamed’s treatment might amount to torture was revealed in his suit against the British government.

Plans to expand secret hearings into civil courts have been accelerated by the government. Rather than moving to the preparatory white paper stage, a justice and security bill will be put through parliament this session.

The government has come under severe pressure from MI5 and MI6 to impose a system of secret hearings in courts ever since disclosures that the security and intelligence agencies had been involved in the brutal treatment, and knew of the torture, of UK residents and citizens detained by the CIA.
[snip]
Ken Clarke, the justice secretary, has said the powers are needed to reassure other countries, particularly the United States, that they can continue to share intelligence without fear of it being exposed in British courts. Read more →

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